2002 PLP 681 (MLD)

After usual investigation, the police sent up for trial only one accused Aijaz Jagirani where rest of applicants/accused have been shown in Column No.2 of the challan. I have heard the learned counsel for the applicants, learned A.A.‑G. as well as learned counsel for the complainant and perused the material brought on record. Learned counsel for the applicants has contended that the complainant and all the P. Ws. are related, set up and hostile to the applicant accused; the only allegation in the F.I.R. against the applicant Muhammad Hayat is that of instigation to the accused to commit murder of Mst. Azeema, whilst applicants/accused Nihal and Sabhago are alleged to have aimed their respective weapons at the complainant and asked him to keep mum but no overt act is attributed to them while applicants/accused Ganhwar are alleged to be merely present at the time of occurrence without any overt role. He further goes on to say that during investigation, in‑ view of the order, dated 5‑9‑2001 passed by S. S. P. Larkana; present applicants/accused were held innocent and their names were placed in Column No.2 of the challan and they were recommended to be released under section 497, Cr.P.C. and applicant/accused Muhammad Azim is certified by the office of Executive Engineer, Larkana Drainage Division, Larkana to be present on official duty during the office hours, as such, his false implication in this case cannot be ruled out and it proves the case of prosecution doubtful and further that applicant Muhammad Azim and Muhammad Hayat are oldage and infirm person and it is well‑settled principle that old‑age itself is infirmity. Ultimately he submits that in view of the above factual position the case of the prosecution is one of the further enquiry. The learned counsel for the applicants has further argued that in the case of Subzal alias Sozoo v. The State bail was granted by this Court on the ground that the names of the accused were kept in Column 2 of the challan. According to the learned counsel the names of the present applicants i.e., Sabhago, Nihal, Ganhwar, Muhammad Haya t and Muhammad Azim are also mentioned in the Column 2 of the challan submitted in Court. In fact the case was recommended to be tried against Aijaz Ali only. On the ground urged by the counsel for the accused that the names of the applicants have been placed in Column 2 of the challan. I have read the detailed judgment of the III‑Additional Sessions Judge. Larkana and I am impressed at the way in which he has concluded. The learned counsel has relied on the following case‑laws:‑‑ Faraz Akram v. The State (1991 SCMR 1360):‑‑In this case bail was granted as no overt act was ascribed to the accused except of ineffective firing. Fatal shot was' attributed to co‑accused; vicariously liability was, therefore, to be determined at the trial. Maqsood Javed v. The State (2001 P. Cr. LJ 2065):‑‑In this case bail was granted as the applicant was found innocent during investigation and police had recommended the case for discharge of the accused. Akhtar Zaman v. The State (2001 YLR 2076):‑‑In this case report was prepared by police Ilaqa Magistrate did not concur. The Court, however, was of the opinion that whilst considering bail application the report could not be ignored. Hazoor Bux v. The State (2001 YLR 2089):‑‑Bail was granted as no overt act was attributed to the applicant and the stateme of injured were recorded after delay of two days. Gaffoor Ahmed v. The State (2001 YLR 2362):‑‑Bail was granted on the basis of the petitioner's name having been placed in Column

2. Muhammad Khalid v. The State (1987 PLJ 1301):‑‑It was observed that accused was found innocent during the investigation and placed in Column 2 of challan was bailed out. Accused was also allowed bail on principle of rule of consistency. Mir Muhammad v. The State (1993 PLJ 88):‑‑Bail was granted as it was observed .that the accused had not caused any injury to the deceased. The identification was done on the basis of lantern and the same lantern has not been secured. Two accused were shown in Column

2. The conclusion drawn was that the police did not believe the version of the complainant. Ashiq Ali Lashari v. The State (2000 MLD 1193):‑‑In this case a single Judge of this Court granted bail. This is a case where question of vicarious liability had come upon. Learned A.A.‑G. has opposed the grant of bail as according to him it is triple murder case and no leniency should be shown since a heinuous crime has occurred. One cannot deny the fact that three people have died in otwe encounter. The F. I. R. has named all the applicants and have even shown the respective roles at the time of Wardat. Indeed from the bare reading of the F.I.R. one person has fired and killed. The role of the applicants has been passive to say the least. They can, however, be held liable or guilty of the alleged crime on the bases of common intention and vicarious liability: For that evidence is necessary. The incident has occurred in August; 2001 and the applicants directed to be implicated as co‑accused in September, 2001 I would, therefore, grant bail to the accused but would also issue directions to the trial Court to at least record evidence of the two witnesses within three months. Bail is granted in the sum of Rs.200,000 each to the satisfaction of the trial Court. H.B.T./S‑157/K Bail granted/Order accordingly.